Qld Enduring Power of Attorney

In situations where individuals are incapacitated due to illness, accident, or similar circumstances, rendering them unable to make decisions or communicate their wishes regarding personal affairs, finances, or health, the establishment of an Enduring Power of Attorney allows for the appointment of a trusted individual/s to act on your behalf.

An attorney appointed under an Enduring Power of Attorney can make decisions regarding personal matters, such as residence, social housing arrangements, employment related decisions, limited health care choices including medical treatments, and financial affairs, encompassing income management, bill payment, taxes, and where permitted property transactions.

While an attorney's authority extends to the same decisions the individual could legally make, the document may outline conditions or limitations or as per the legislation. Supported by the underpinning legislation in that ‘an attorney who may exercise a power under a document must, when exercising the power, exercise it subject to the terms of the document.’  Whilst also exercising such power ‘honestly, and with reasonable diligence to protect the principal’s interests.’  Such protective measures may act to safeguard specific acts, safeguards for example may be entered to not allow provision to sell the family home or so forth.

The Powers of Attorney Act (1998) delineates certain powers that Enduring Powers of Attorney are expressly prohibited from exercising,  including but not limited to making or revoking the principal's will, executing or revoking a power of attorney, enduring power of attorney, or advance health directive, exercising voting rights, consenting to child adoption, and consenting to the principal's marriage.

Eligible attorneys must be adults over 18, possess the capacity for the designated matters, and be trusted individuals capable of fulfilling the responsibilities. It's crucial to select someone based on trust, competence, and alignment with the individual's values and preferences, with no obligation to choose family members. They must also not be a paid carer or health care provider of the principal or, in the setting of financial appointment, be bankrupt.

You may consider Criteria for selecting an attorney to include trustworthiness, familiarity with the individual's preferences, and suitability for the role. There are also various ways to structure decision-making authority among multiple attorneys. These include jointly, where all attorneys must agree on decisions; severally, allowing any attorney to make decisions independently; jointly and severally, permitting attorneys to decide together or separately; and majority, specifying a required majority if more than three attorneys are appointed.

The power of an attorney for personal and health care matters commences only upon the loss of capacity to make those decisions. However, for financial matters, the attorney's power begins as nominated in the Enduring Power of Attorney form. The individual retains the ability to make decisions while capable.

The Enduring Power of Attorney can be cancelled or changed at any time if the individual still possesses decision-making capacity. This can be done by completing a Revocation of Enduring Power of Attorney form and providing certified copies to relevant parties.

Additionally, life events such as marriage, divorce, or death automatically terminate the Enduring Power of Attorney as well as, should the attorney become bankrupt, loose capacity themselves, or die, then their authority also ceases.

Should there be no Enduring Power of Attorney, the appointment of the Public Trustee for managing financial affairs is not automatic; instead, it is determined by the Queensland Civil and Administrative Tribunal, which may select either the Public Trustee or a family member. To ensure your preferences are honoured before losing decision-making capacity, it's advisable to designate an attorney for health, personal, and financial matters.

CJM Lawyers can assist you to provide certainty to you and your family, as well as provide you the security in knowing your wishes are documented and understood by those you entrust with your care should your capacity ever be an issue. Our Team will also ensure that instructions are clear as to when it can be used, should be used, and the legal requirements in the keeping and preservation of this there, also.

Disclaimer: This article is for general understanding and should not be used as a substitute for professional legal advice. Any reliance on the information is strictly at the user's risk, and there is no intention to create a lawyer-client relationship from this general communication.